Saturday, April 9, 2011

Malcolm Turnbull On WikiLeaks And Assange

On March 31 2011, Australian politician Malcolm Turnbull gave a speech titled 'Reflections on WikiLeaks, Spycatcher and Freedom of the Press', to the Sydney University Law School.

In his speech Turnbull talks about Australian Prime Minister Julia Gillard, Julian Assange, WikiLeaks, 'Spycatcher' author Peter Wright, and more.
Turnbull compared the way Prime Minister Gillard is handling the Assange situation to the way Margaret Thatcher handled the Peter Wright situation.

Peter Wright was a former MI5 officer who wrote his memoirs, a book titled 'Spycatcher', that Margaret Thatcher tried to stop the publication of.

Turnbull said about Thatcher, 'Spycatcher', and Wright:

"In 1986 Lucy (my wife) and I represented a former MI5 officer, Peter Wright, in his efforts to publish his memoirs 'Spycatcher'. Mrs Thatcher, then Prime Minister of Britain, was determined that no former MI5 officer should ever be able to write about his work regardless of whether the information was still confidential, impacted on current operations or was otherwise of any real detriment to intelligence services."

"The information in 'Spycatcher' had in fact been provided some years before by Wright to Chapman Pincher for his books 'Their Trade is Treachery' and 'Too Secret Too Long' in an arrangement brokered by Lord Victor Rothschild with the assistance of MI6 and the prior knowledge of MI5. We also argued that the book revealed the commission of crimes and other wrongdoing."

"Nonetheless the British Government had easily obtained an interlocutory injunction on the basis of a breach of confidence. Our main argument was that there was nothing in the book which any longer had the requisite quality of confidence and probably the most important document in the case was a weighty volume called the consolidated particulars of public domain which proved, line by line, that there was absolutely nothing in the book which had not been published somewhere else."

"In an effort to get the book published before a trial we offered it up to MI5 to be blue pencilled so that if there were any matters impacting on current operations they could be excised. They refused to co-operate, it was all or nothing."

Turnbull thought that Wright would succeed with his fight to publish 'Spycatcher', and said:

"That was because of a decision of the High Court of Australia in 1980, Commonwealth v. Fairfax, in which Sir Anthony Mason had held that a government could only restrain the publication of confidential information if it could establish that the information was still secret and, most importantly, that its publication would cause real detriment not just embarrassment, public debate and controversy."

"Spycatcher ticked all of the boxes in Commonwealth v Fairfax. The contents was at least twenty years out of date and had no relevance to current operations. Almost all of it had been previously published."

About Gillard and Assange, Turnbull said:

"Prime Minister Julia Gillard described (Assange) as someone who had broken the law by publishing the contents of confidential US State Department cables."

"These remarks by the Prime Minister which were echoed by her Attorney General were particularly regrettable, not simply because she was so obviously in error from a legal point of view, but whatever one may think of Assange he is an Australian citizen."

"More importantly perhaps, at the time he was being described as breaking the law by Ms Gillard, prominent American politicians and journalists were describing him as a terrorist and in some cases calling for him to be assassinated."

"While Assange is no doubt quite safe from assassination, when an Australian citizen is threatened in this way, an Australian Prime Minister should respond."

"Julia Gillard could have quite properly deplored his publishing of confidential information, sympathised with our embarrassed American allies, but at the same time registered our profound unhappiness that an Australian citizen is being threatened in this way by leading figures in another country whose commitment to freedom of speech and the rule of law we traditionally regard as being no less than our own."

"She might even have taken the time to ask how on earth the United States security arrangements were so slack that hundreds of thousands of highly confidential documents could be copied onto a disk by a 23 year old US Army Private, Bradley Manning."

"Prime Minister Gillard was more than happy to accuse Assange of acting illegally, but I didn’t hear her describe the editors of The Age and the Sydney Morning Herald in those terms when they published the contents of the State Department Cables given them by WikiLeaks."

"Assange’s conduct may be misguided, even reprehensible, but no Australian Prime Minister should accuse one of her own citizens of breaking the law when there has not even been a charge let alone a conviction."

About Assange, Turnbull said:

"So what are we to make of Assange and his website? Well I trust I have made it clear that while I do not regard him as a criminal, nor do I regard him as a hero. The ineptitude of his detractors has given him greater kudos and importance than he deserved in precisely the same way Margaret Thatcher’s iron will made 'Spycatcher' a global best seller."

"Not only was it perfectly obvious that Julian Assange had broken no Australian law (and despite the strenuous efforts of the American authorities there is no evidence to date he has broken any American ones) but the decision of the High Court in 'Spycatcher' make it quite clear that any action in an Australian court to restrain Assange from publishing the State Department cables would have failed."

The High Court declared that an Australian Court should not act “to protect the intelligence secrets and confidential political information” of a foreign government, even friendly governments or even if the Australian Government has requested the Court to do so.

About WikiLeaks, Turnbull said:

"While the over the top reaction of the British Government to Peter Wright is echoed in the reaction of the Americans to Assange, and with the same counterproductive result, it must be said that the nature of the material Wright sought to publish was very different to the Wikileaks revelations. Wright’s material was very old and could not possibly impact on current operations. It was in every sense the stuff of history. The material published by WikiLeaks is very current. Much of it is very sensitive. It is worth considering it in more detail."

"WikiLeaks opened its virtual doors as a site for publishing government secrets in 2006 but it did not become very prominent until April 2010 and the controversial release of a US Army video which became known as the ‘Collateral Murder’ video. This showed two Apache helicopters firing on a group of people in Iraq. Among the dead were a photographer and a driver employed by Reuters."

"Assange had previously used WikiLeaks as a low profile clearing house, receiving information and publishing it. On this occasion he began the practice of releasing material in collaboration with established media outlets which have since then included the New York Times, the Guardian, Le Monde, Der Spiegel and the Fairfax broadsheets in Australia among others."

"The original Army video was about forty minutes long and Assange edited it to make it, he said, more comprehensible. Needless to say the editing was controversial. But it indicated he was doing more than simply letting the sunshine in, he was adding interpretation to revelation."

"In July last year WikiLeaks obtained and later published the Afghanistan War Logs, about 92,000 US Army reports from the battlefields of Afghanistan between 2004 and 2009. He co-ordinated the release with major newspapers and it must be said that each newspaper approached the release and analysis of the documents differently. The most reported aspects were the alleged evidence that civilian casualties were much higher than reported by the US Government and that the Pakistan Intelligence Service were actively assisting elements in the Taliban. Neither melancholy revelation would, however, have come as a surprise."

"It is worth noting here that many people, including myself, expressed great concern that these reports would compromise current operations and put lives at risk, especially those of people assisting the United States. This anxiety is relevant to all the WikiLeaks revelations and is particularly so when such a large amount of documentary material is released at once. With the best will in the world, how can so much material be safely blue pencilled to ensure lives are not put at risk, and even with names deleted who can say sitting in an office in London or Paris that there is not enough information in a cable or a battle field report to enable our enemies to identify an individual and then kill them?"

"The most controversial disclosure was to come in November with the first release of some of the 250,000 State Department cables. Once again Assange worked with mainstream media outlets to release the material and generally did not publish cables on his website until they had been published, often in a redacted form, by the newspapers themselves."

"They (the journalists) sought and obtained advice from the US State Department about the cables with a view to ensuring that current intelligence operations were not compromised and that lives were not put at risk. When WikiLeaks sought to obtain similar advice about the contents of the cables, in effect requesting a blue pencilling, they were rebuffed."

"When WikiLeaks approached the Administration they responded with a letter from the department’s legal advisor, Harold Koh, which stated they would not engage in any negotiation regarding the release of illegally obtained US Government classified material and demanded they not publish anything. In doing this the government was seeking to allocate Assange to an entirely different legal framework than the mainstream media organisations it has so often cooperated with."

About the leaked cables that WikiLeaks published, Turnbull said:

"That what the American government publicly declares its position to be is generally the same as the position they take in private must have certainly come as a pleasant if not welcome surprise to many, including no doubt Assange himself."

"It seems to me that the contents of the material can be said to fall into at least three groups. The most important is that which actually does compromise current intelligence operations and/or put at risk the lives of those assisting the United States especially in the ongoing struggle with Islamist fundamentalist terrorism. This type of material self-evidently should not be published."

"There are two cables which have been cited as real threats to national security and which underline my misgivings. One from February 2009 listed particular pieces of infrastructure, both private and public, the interruption to which would hurt US interests. Obviously this would be of interest to enemies of America although whether it was new, or whether the characterisation was accurate is another matter. A second was a cable which indicated Morgan Tsvangirai had privately supported sanctions against Zimbabwe as a means of forcing Mugabe to step down. This was immediately used against Tsvangirai by Mugabe as a possible basis for a charge of treason. Obviously neither cable should have been published."

"A third category is material which is diplomatically and politically sensitive and is most definitely of the kind that a Government would not want published but that no court would be likely to restrain. These include US diplomats being asked to spy on their UN colleagues, Saudi Princes urging the Americans to attack Iran, the corruption of numerous regimes including a number of Arab countries where the contents of the cables is said to have helped inspire the popular insurrections which have deposed the governments of Tunisia and Egypt and are presently battling to overthrow the regime in Libya."

About Bradley Manning, the U.S. soldier accused of stealing the embarrassing diplomatic cables, the classified documents about the Iraq and Afghanistan wars, and the 'Collateral Murder' video and giving them to WikiLeaks, Turnbull said:

"There have been attempts to articulate a criminal case against Assange in the United States on the basis that he conspired with or otherwise induced Bradley Manning to commit what was in his case undoubtedly an offence. No charge has been laid and what evidence we have (and it consists of online admissions in a chat room by Manning himself) suggest that his transmission of the materials to WikiLeaks was entirely of his own volition."

Manning is being held at Quantico Marine Corps Base in Virginia in solitary confinement 23 hours a day in a windowless 6-by-12-foot cell, shackled and forced to sleep either naked or in a suicide-proof smock due to supposed fears that he may commit suicide.

Of the 24 charges Manning is currently facing, 'aiding the enemy' is the most serious. If he is found guilty of 'aiding the enemy', Manning could spend the rest of his life behind bars or get the death penalty.

Turnbull finished his speech by saying:

"We will remain forever, I imagine, rightly angry at the recklessness of receiving and publishing so much confidential material. So far it seems less harm has been done than might have been the case, but the risks are extraordinary and if only one life was lost, if only one sensitive operation was compromised then the heavy responsibility for that must lie with Assange."

"I would like to hope that in the future such revelations will be more discriminating, but it is hard to be confident."

"The lesson for Governments, apart from improving their security, is to assume that everything said or written will, sooner or later, see the light of day. That may not be a good thing, and it certainly doesn’t make life easier, but it is, I fear, a reality."

"The Governments with most to fear from such disclosure are those whose public statements are at odds with their private opinions – and as I noted earlier so far it appears, to its credit, that the US State Department’s private cables have been consistent with their public policy."

Assange, who is under house arrest at Ellingham Hall in Norfolk,UK, has been fighting extradition to Sweden where he has not been charged with anything but is wanted for questioning by the Swedish police about accusations of rape and sexual molestation made against him by Sofia Wilen and Anna Ardin. Assange denies the allegations and says he had consensual sex with the two women.

The WikiLeaks founder will continue to fight being extradited to Sweden at a two day hearing at the High Court in London on July 12 and 13.

Assange and his lawyers fear that if he is extradited to Sweden he may then be extradited to the United States, where he could face torture, confinement at Guantanamo Bay, both, or even the death penalty.

Assange has angered the United States with the publishing of leaked embarrassing diplomatic cables, the classified documents about the Iraq and Afghanistan wars, and the 'Collateral Murder' video.